October 14, 2017

Weekly litigation update — October 14, 2017

By James S. Burling Vice President for Litigation

Oral argument held in WOTUS case

The Supreme Court held oral argument this last Wednesday in  National Manufacturers Association v. U.S.a case that our Washington Cattlemen’s Association case had been consolidated into. These cases challenge the Obama administrations “Waters of the United States” rule. At issue in this particular argument was whether challenges to such Clean Water Regulations should be filed in federal district court (which would have a six-year statute of limitations) in the first instance, or in a Court of Appeals (where there is a 90 day statute of limitations.)

The tenor of the argument seemed quite favorable our position that the plain language of the Clean Water Act controls here, and that the plain language calls for challenges to be filed in federal district court. While Justices Sotomayor, Ginsburg and Kagan expressed some concern over the government’s argument that allowing cases to be filed in district court would be “inefficient,” their support for the government’s position seemed tepid at best. More telling was Justice Breyer’s forceful response to the government’s argument — when he stated that there was only one logical way to read the statute — and that was that challenges to rules like the WOTUS rule belonged in district court. We predict that a significant majority of the Court will rule in our favor. We expect a decision in several months.

Two PLF cases relisted at the Supreme Court

The Supreme Court has “relisted” two PLF cases that are pending on petitions for writ of certiorari. In both 616 Croft (our challenge to West Hollywood’s demand that a couple pay over $500,000 in “affordable housing” fees for the right to build 11 condominiums) and Minnesota Voters Alliance v. Mansky (our First Amendment challenge to Minnesota’s polling place apparel ban).

When the Court receives a petition for writ of certiorari, it will hold a conference to consider the case. After the conference the Court will usually do one of three things: grant the petition, deny the petition, or “relist” the petition–meaning it has decided to reconsider the petition at a future conference. This means the Court is taking extra time to more thoroughly research the potential case. Now in 616 Croft, the Court has relisted the case twice, in Mansky once. In practical terms, this is good news for these cases. The recent practice of the Court is not to immediately grant a cert petition after only one conference. Instead, the more promising cases are relisted one or more times — sometimes a half-dozen times.

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